CLA-2 RR:CR:TE 961175 RH
Richard L. Huffman, Esq.
Baden, Kramer, Huffman & Brodsky, P.C.
20 Broad Street
New York, NY 10005
Re: Petition for Reversal of New York Ruling Letter A88268
Dear Mr. Huffman:
This is in reply to the petition you submitted on behalf of
Jewelry Box Corporation of America, seeking "reversal" of New
York Ruling Letter (NY) A88268, dated November 1, 1996.
When our office first received your petition we notified you by
letter of March 12, 1997, that the questions raised in your
ruling request were closely related to issues pending in cases
before the Court of International Trade (CIT), and that we were
unable to render a classification ruling revoking or modifying NY
A88268, in accordance with 19 C.F.R. 177.7. We have since been
advised that, although cases with similar issues are still
pending in the CIT, this decision will not affect those cases,
and that we can now respond to your inquiry.
FACTS:
You state that your client imports plastic jewelry boxes covered
with paper or nontextile materials. The "Concord" jewelry box,
style 72155, is made up of 60 percent plastic resin and is
covered entirely on the exterior with a flocking of manmade
textile materials. The flocking appears to have been sprayed
onto the surface of the molded shell and is adhered to an
adhesive base or glue.
The "Leatherette" jewelry boxes, styles K550 and K907, and the
"Metropolitan" jewelry box, style 99002R, have a plastic frame
and are covered with paper that is coated with a thin film of
vinyl.
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In NY A88268, Customs held that the Concord jewelry box was
classifiable under subheading 4202.92.9015 of the 1996 Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) (other
jewelry boxes with an outer surface of textile materials).
Classification of the Leatherette and Metropolitan jewelry boxes
was under subheading 4202.92.9040, of the 1996 HTSUSA (other
containers with an outer surface of sheeting of plastic).
In your opinion, the vinyl film on the Leatherette and
Metropolitan jewelry boxes is not a sheeting of plastic and the
flocking on the Concord is not a textile. You contend that all
three boxes are classifiable under subheading 4202.99.1000,
HTSUSA, as plastic jewelry boxes covered mainly with paper.
ISSUE:
Are the Leatherette and Metropolitan jewelry boxes classifiable
in subheading 4202.92, HTSUSA, because they are wholly or mainly
covered with paper that has an outer surface of sheeting of
plastic, and is the Concord jewelry box classifiable in heading
4202.92 as a jewelry box with an outer surface of textile
material? If not, are all the boxes classifiable under
subheading 4202.99, HTSUSA, as plastic jewelry boxes covered
mainly with paper?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in
their appropriate order. Jewelry boxes are specifically listed
in heading 4202, which provides for:
Trunks, suitcases . . . and similar containers;
traveling-bags . . . jewelry boxes . . . and similar
containers, of leather or of composition leather, of
sheeting of plastics, of textile materials, of
vulcanized fiber or of paperboard, or wholly or mainly
covered with such materials or with paper.
The Explanatory Notes (EN) to heading 4202, HTSUSA, which
constitute the official interpretation of the tariff at the
international level, state that articles covered by the second
part of the heading must be only "of" the materials specified
therein or must be "wholly or mainly covered with such materials
or with paper."
The four styles of jewelry boxes at issue have a plastic frame
and, therefore, meet the criteria in the Explanatory Notes for
classification within heading 4202.
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The next issue concerns the subheading under which to classify
the jewelry boxes. At the six-digit level, the nomenclature
classifies the majority of goods in Chapter 42 by the material
which comprises the "outer surface." HQ 954021, dated November
1, 1993, citing HQ 087760, dated October 31, 1991, and HQ
087640, dated November 8, 1990. The term "outer surface of" is
not defined in Chapter 42, nor anywhere else in the HTSUSA. In
HQ 086775, dated July 9, 1990, Customs stated that the outer
surface "is that which is both visible and tactile." See 954021
and the cases cited therein. "Tactile" is defined as follows:
"1. Perceptible to the touch: TANGIBLE." "Tangible" is defined
as follows: "1a. Discernible by the touch or capable of being
touched." Webster's II New Riverside University Dictionary,
(1984) at 1178 and 1182, respectively.
You contend that the flocking on the Concord is not a textile.
However, you do not state what you believe the flocking to be.
The Dictionary of Fiber & Textile Technology, (1989) defines
flock as follows:
The material obtained by reducing textile fibers to
fragments by cutting or grinding. There are two main types:
precision cut flock, where all fiber lengths are
approximately equal, and random cut flock, where the fibers
are ground or chopped to produce a broad range of lengths.
The definition of flocking reads:
A method of cloth ornamentation in which adhesive is printed
or coated on a fabric, and finely chopped fibers are applied
all over by means of dusting, air-blasting, or electrostatic
attraction. In flock printing, the fibers adhere only to
the printed areas and are removed from the unprinted areas
by mechanical action.
In HQ 086775, dated July 9, 1990, we held that three styles of
jewelry boxes covered with flocked paper were classifiable in
subheading 4202.92.9020, HTSUSA, as jewelry boxes, with an outer
surface of textile materials. We stated that "[r]egardless of
the material to which the flock may be adhered, it is the textile
[flock] which forms the outer surface of the jewelry boxes.
Moreover, Headquarters Ruling Letter (HQ) 953610, dated April 30,
1993, (cited in your letter to support your claim that the
jewelry boxes do not have an outer surface of sheeting of
plastic) contradicts your claim that the flocking on the Concord
jewelry box in the instant case is not a textile material. In
that ruling, Customs classified jewelry boxes covered with
flocked synthetic or nylon material under subheading
4202.92.9020, as jewelry boxes with an outer surface of textile
materials of manmade fibers. Accordingly, we find that the
Concord jewelry box has an outer surface of textile material.
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You further contend that the vinyl film on the Leatherette and
Metropolitan jewelry boxes is not a sheeting of plastic because
it does not satisfy the definition in Note 10 to Chapter 39,
HTSUSA (Plastics and Other Articles Thereof). You state that
the plastic in question is really paper with an extremely thin
vinyl coat and that it is not in the cut state but has been
further worked as the covering on a plastic box. Additionally,
under the principles of U.S. Note 2, Chapter 42, HTSUSA, you
argue that the outside surface is mainly paper and the presence
of some plastic does not require a finding that the boxes be
classified under subheading 4202.92.
Note 10 to Chapter 39 states, in part:
[T]he expression "plates, sheets, film, foil and strip"
applies only to plates, sheets, film, foil and strip
(other than those of Chapter 54) and to blocks of
regular geometric shape, whether or not printed or
otherwise surface-worked, uncut or cut into rectangles
(including squares) but not further worked (even if
when so cut they become articles ready for use).
We disagree with you that an outer surface of "sheeting of
plastic" for purposes of heading 4202 must satisfy the definition
of Note 10, Chapter 39. Additional U.S. Note 2 of Chapter 42,
HTSUSA, makes clear that a sheeting of plastic may be an
impregnation, coating, covering or lamination. It provides:
For purposes of classifying articles under subheadings
4202.12, 4202.22, 4202.32 and 4202.92, articles of
textile fabric impregnated, coated, covered or
laminated with plastics (whether compact or cellular)
shall be regarded as having an outer surface of textile
material or of plastic sheeting, depending upon whether
and the extent to which the textile constituent or the
plastic constituent makes up the exterior surface of
the article.
Moreover, Customs resolved the issue of what is the "outer
surface of" articles made with composite materials. See HQ
954021. Specifically, we addressed whether jewelry box frames
which were made of plastic or metal and were covered with paper
backings to which textile materials had been applied had an outer
surface of textiles or paper. In reaching our conclusion, we
said that Additional U.S. Note 2 of Chapter 42 is instructive in
understanding the meaning of "outer surface of" when applied to
composite materials [not specifically listed in that note].
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Customs application of U.S. Note 2, Chapter 42, makes it clear
that a composite material that is "of" textile for classification
at the heading level may, nonetheless, have an "outer surface of"
plastic for classification at the subheading level. HQ 954021,
citing HQ 087640, HQ 087755, HQ 087210, dated May 10, 1991. In
954021, Customs found that the absence of a note addressing
paper and textile composite materials, or other composite
materials (i.e., paper and plastic) did not evidence an intent to
interpret the term "outer surface" differently when confronted
with other component combinations. We held that the composite
paper and textile flock material that covered the jewelry box was
a paper for heading level classification (4202) but had an "outer
surface of" textile material for subheading level classification
(4202.92).
In your case, the vinyl film on the Leatherette and Metropolitan
jewelry boxes coats, covers or is laminated to the paper and
constitutes the exterior of the boxes. Therefore, we find that
those jewelry boxes are constructed of plastic and are wholly
covered with paper which has an outer surface of sheeting of
plastic.
Finally, you contend that the boxes in question are not suitable
for long term use but will be used only to transfer jewelry from
the point of purchase to the purchaser's home. After examining
the samples you sent us, we believe that the cases are
sufficiently durable to last a considerable length of time and to
serve a protective storage function.
The ruling you cite, HQ 954610, was issued prior to HQ 954201 and
did not address the issue of "sheeting of plastic" or "outer
surface of." In that ruling, the classification of the plastic
jewelry box with an outer surface of a leatherette plastic coated
paper under subheading 4202.99.1000, HTSUSA, was incorrect, and
we are in the process of revisiting that decision.
HOLDING:
The Concord jewelry box, style 72155, is classified in subheading
4202.92.9015 of the 1998 HTSUSA, which provides for "Trunks,
suitcases . . . and similar containers; traveling-bags . . .
jewelry boxes . . . and similar containers, of leather or of
composition leather, of sheeting of plastics, of textile
materials, of vulcanized fiber or of paperboard, or wholly or
mainly covered with such materials or with paper: Other: With
outer surface of sheeting of plastic or of textile materials:
Other: Other: With outer surface of textile materials: Other,
jewelry boxes of a kind normally sold at retail with their
contents.
The Metropolitan (style 99002R) and Leatherette (styles K550 and
K907) jewelry boxes are classifiable under subheading
4202.92.9060 of the 1998 HTSUSA, which provides for "Trunks,
suitcases . . . and similar containers; traveling-bags . . .
jewelry boxes . . . and similar containers, of leather or of
composition leather, of sheeting of plastics, of textile
materials, of vulcanized
fiber or of paperboard, or wholly or mainly covered with such
materials or with paper: Other:
With outer surface of sheeting of plastic or of textile
materials: Other: Other: Other: Other.
All the jewelry boxes are dutiable at the general column one rate
of duty at 19 percent ad valorem.
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New York A88268 is affirmed. However, the tariff numbers and
duty rate have been changed to reflect the current HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division